City sued for its handling of pot bill

City violated rights with pass-and-repeal tactic, lawsuit says

Jul. 25, 2013

A Springfield petition sought to remove criminal penalties for first- or second-time offenders caught with up to 35 grams of marijuana, an amount about equal to a sandwich bag. Instead, offenders would be subject to fines, community service and/or drug education programs. / AP file photo

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It may have saved the cost of an election, but City Council’s decision to pass and then quickly repeal a citizen petition related to marijuana has landed current and former council members in federal court.

Local and out-of-state backers of the petition to reduce penalties for misdemeanor marijuana possession filed a lawsuit against the city late Wednesday.

The lawsuit, which names current and former council members and City Manager Greg Burris as well as the city as a whole, alleges that council violated the constitutional rights of petition supporters.

The suit was filed by Maranda Reynolds, who helped organize the local petition effort, as well as the nonprofit groups Show-Me Cannabis Regulation and American Victory Coalition, based in Oregon. Both groups provided financial support for the petition drive that sent the proposed bill to council in August 2012.

At times referred to as a “decriminalization” ordinance, the petition sought to remove criminal penalties for first- or second-time offenders caught with up to 35 grams of marijuana, an amount about equal to a sandwich bag. Instead, offenders would be subject to fines, community service and/or drug education programs.

The proposal proved unpopular with local law enforcement. City legal staff also argued that provisions allowing for past convictions to be expunged and mandating creation of a citizen oversight panel were in conflict with state law.

After several heated public hearings, council members on Aug. 27 voted 6-3 to adopt the ordinance. The lawsuit notes that Mayor Bob Stephens, as well as council members John Rush, Jeff Seifried and Tom Bieker, said they were voting for the ordinance in order to amend or repeal it at the first opportunity.

Springfield City Charter requires council to either adopt a successful petition or send it to a public vote. City Attorney Dan Wichmer has defended the “pass and repeal” tactic — which avoided an election — as technically legal. The lawsuit, however, calls it “an illegal attempt to circumvent the intent” of the charter petition process on the grounds that council members “cannot do indirectly what (they) are forbidden from doing directly.”

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The lawsuit argues that, since the charter was adopted in 1953, no other petition has been adopted and then repealed “in its entirety within weeks ... in order to avoid calling an election.”

“The above described actions and/or statements show that these Defendants applied a different and unlawful standard to the Plaintiffs than what they applied to other persons whose initiative petitions were certified by the City Clerk as sufficient,” the suit says.

The lawsuit also alleges that several council members “made disparaging comments about the Petitioners and their Petition” and that the timing of the repeal prevented the petitioners from seeking a court order in time to place the proposal on the November 2012 presidential ballot as they had planned.

The suit says council’s actions “were taken as part of a deliberate ruse and scheme” to deny the petitioners their rights under the City Charter, which are protected as “an exercise of Plaintiffs’ right of free speech and the right to petition the government under the Free Speech Clause and the Petition Clause of the First Amendment to the Constitution of the United States and is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.”

The lawsuit seeks attorney fees, court costs and compensatory damages, as well as punitive damages from the city, Stephens, Seifried, Rush, Bieker and Councilwoman Jan Fisk — all of whom voted for the ordinance only to repeal it later.

It also asks that a court order the proposed marijuana ordinance be sent to a public vote at either the November 2014 or November 2016 election.

The petitioners are represented by Springfield attorney Joseph “Chip” Sheppard, who represented several local businesses in an earlier lawsuit against the city that successfully challenged the petition-based “E-Verify” ordinance.

He also serves as independent counsel for the police-fire pension board, representing the board on issues that present a conflict of interest for city attorneys. Sheppard was paid about $29,500 for that work during the 2011-2012 fiscal year.

City spokeswoman Cora Scott said late Wednesday that the city attorney had received notification that the suit had been filed but had not had a chance to read the complaint.

She reiterated, however, that the city believes council members are allowed to pass and repeal petitions according to the City Charter.

She said that, when council initially adopted the marijuana petition, “it was the intention to make amendments to remove illegal portions,” but that council members could not agree on amendments and decided instead to repeal the ordinance altogether.